JOHN S. PICARD, 

Petitioner, 

v. 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CASE NO. 2:11-CV-712 

JUDGE WATSON 

MAGISTRATE JUDGE ABEL 

MICHELE MILLER, WARDEN, 

Belmont Correctional Institution, 

Respondent. 

OPINION AND ORDER 

On April2, 2012, the Magistrate Judge issued a Report and Recommendation recommending 

that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. 

Petitioner has filed objections to the Magistrate Judge's Report and Recommendation (Doc. 23) and 

a request for a certificate of appealability. (Doc. 24). For the reasons that follow, Petitioner's 

objections (Doc. 23) are OVERRULED. The Report and Recommendation is ADOPTED and 

AFFIRMED. This action is hereby DISMISSED. 

Petitioner's request for a certificate of appealability (Doc. 24) is DENIED. 

Petitioner objects to the Magistrate Judge's recommendation of dismissal of his claims as 

procedurally defaulted, failing to present issues appropriate for federal habeas corpus review, and 

as without merit. He objects to factual findings of the state appellate court. He again argues that his 

claims are properly before this Court and objects to the Magistrate Judge's conclusion that none of 

his claims warrant federal habeas corpus relief. 

Pursuant to 28 U.S.C. § 636(b ), this Court has conducted a de novo review. For the reasons 

detailed in the Magistrate Judge's Report and Recommendation, Petitioner's objections (Doc. 23) 

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are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This 

action is hereby DISMISSED. 

Petitioner also has filed a request for a certificate of appealability. When a claim has been 

denied on the merits, a certificate of appealability may issue only if the petitioner "has made a 

substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard 

is a codification of Barefootv. Estelle, 463 U.S. 880 (1983). See Slackv. McDaniel, 529 U.S. 473, 

484 (2000) (recognizing codification of Barefootin28 U.S.C. § 2253(c)(2)). To make a substantial 

showing of the denial of a constitutional right, a petitioner must show " that reasonable jurists could 

debate whether (or, for that matter, agree that) the petition should have been resolved in a different 

manner or that the issues presented were 'adequate to deserve encouragement to proceed further."' 

Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893, & n.4). 

Where the Court dismisses a claim on procedural grounds, a certificate of appealability 

"should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether 

the petition states a valid claim of the denial of a constitutional right and that jurists of reason would 

find it debatable whether the district court was correct in its procedural ruling." !d. Thus, there are 

two components to determining whether a certificate of appealability should issue when a claim is 

dismissed on procedural grounds: "one directed at the underlying constitutional claims and one 

directed at the district court's procedural holding." !d. at 485. The court may first "resolve the issue 

whose answer is more apparent from the record and arguments." !d. 

Upon review of the record, the Court concludes that petitioner has failed to establish either 

that reasonable jurists would debate whether the Court properly dismissed his claims as procedurally 

defaulted or whether the petition states a valid claim of the denial of a constitutional right. 

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Petitioner's request for a certificate of appealability (Doc. 24), therefore, is DENIE . 

IT IS SO ORDERED. 

United States District Judge 

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